In Re: Chelliah Servai

Govinda Menon, J.—In Muppana Appana v. Emperor 1947 M.W.N. (Crl.) 101, Horwill and Shahabuddin, JJ., nave held that when a person is charged and tried for an offence u/s 396, Indian Penal Code, he can be validly and legally convicted of a minor offence under Sections 395 and 397, Indian Penal Code, even though the offence u/s 396,. Indian Penal Code, was triable with the aid of assessors and that u/s 395, Indian Penal Code or 397, Indian Penal Code, only with a jury. In my opinion an offence u/s 395 or 397, Indian Penal Code, is a minor offence within the meaning of Section 238, of the Criminal Procedure Code, when considered in relation to an offence u/s 396, Indian Penal Code. Such being the case, the accused who already had the benefit of acquittal for an offence u/s 396, Indian Penal Code, on the same set of facts cannot now be tried and convicted for an offence u/s 395 or 397, Indian Penal Code. Section 403, Criminal Procedure Code, is a bar to a fresh trial. The reference is accepted and the accused is discharged.

This conclusion will necessarily entail the opinion that the conviction of the others of the offence u/s 395 or 397 on the second trial is illegal. The attention of the Provincial Government will be drawn to the circumstances for appropriate action u/s 401 of the Criminal Procedure Code.